United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. Yandle United States District Judge.
Christopher Whittle is incarcerated at the United States
Penitentiary in Marion, Illinois (“Marion”). He
filed this habeas corpus action pursuant to 28 U.S.C. §
2241 in May 2019 to challenge the calculation of his 72-month
sentence for drug possession imposed in United States v.
Whittle, No. 15-CR-4016-BCW-1 (W.D. Mo. 2015). (Doc. 1).
Whittle claims that he is entitled to 410 days' credit
against his federal sentence for jail time he served from the
date of his indictment (April 2, 2015) until the date he was
sentenced (May 17, 2016). (Doc. 1, pp. 6, 8). He asserts that
he is entitled to immediate release if the Bureau of Prisons
(“BOP”) gives him proper credit for the
opposes habeas relief on the merits and on procedural
grounds. The BOP asserts that Whittle's federal sentence
did not begin to run until the date of his sentencing (May
17, 2016) and he is not entitled to the credit he claims.
(Doc. 8, pp. 1-3, 5-8). Further, it points out that Whittle
failed to seek redress for his claim through the prison
administrative grievance and appeal process as he is required
to do before filing his federal habeas petition. (Doc. 8, pp.
3-5). Whittle was given an opportunity to reply to the
matters raised in the Response but has not done so and his
deadline to reply has long expired. (Doc. 9). Therefore, the
case is ripe for resolution.
Facts and Procedural History
was convicted in two Missouri state cases before he was
charged with the federal offense. (Doc. 8, p. 2). He was in
state custody for a probation revocation at the time of his
federal indictment in April 2015 and was transferred to
federal custody on a writ of habeas corpus ad
prosequendum issued on July 9, 2015. (Doc. 8-1, p. 2).
Whittle's federal sentence, imposed on May 17, 2016, was
ordered to run concurrently to his state sentences.
Id. He was returned to Missouri custody to complete
the state sentences, which he did on July 1, 2016. He then
was transferred to federal custody for the completion of his
federal sentence. (Doc. 8, p. 2; Doc. 8-1, pp. 2-3).
According to the BOP's sentence computation,
Whittle's projected release date as of the time the
Response was filed was August 7, 2021. (Doc. 8, pp. 1-2; Doc.
8-5, p. 1).
was notified of the BOP's sentence computation and his
projected release date in August 2016. (Doc. 8, p. 3; Doc.
8-3, pp. 1-2). He did not initiate an administrative
grievance regarding the sentence credit issue until
approximately May 15, 2019, and the administrative appeal
process was not completed when he filed his Petition in this
Court on May 24, 2019. (Doc. 1, p. 2; Doc. 8, p. 3).
Attorney General, acting through the BOP, calculates an
inmate's sentence “as an administrative matter when
imprisoning the defendant.” United States v.
Wilson, 503 U.S. 329, 335 (1992). A habeas petition
pursuant to 28 U.S.C. § 2241 is the proper vehicle to
challenge the calculation, i.e., the execution, of a
sentence. Romandine v. U.S., 206 F.3d 731, 736 (7th
Cir. 2000). However, before the Court can consider such a
claim, the petitioner must exhaust administrative remedies.
See Clemente v. Allen, 120 F.3d 703, 705 (7th Cir.
1997); Richmond v. Scibana, 387 F.3d 602, 604 (7th
Cir. 2004); Jackson v. Carlson, 707 F.2d 943, 949
(7th Cir. 1983).
has created an Administrative Remedy Program which
“allow[s] an inmate to seek formal review of an issue
relating to any aspect of his/her own confinement.” 28
C.F.R. § 542.10(a). The Program is described in detail
in the Response to the Petition. (Doc. 8, p. 4). Here,
Whittle started the administrative review process by
submitting a BP-8 form to his counselor on or about May 16,
2019. (Doc. 8, p. 4; Doc. 8-9). The BP-8 was denied in an
undated response. (Doc. 8-9, p. 3). Whittle took the next
step by filing a BP-9, but the response to that appeal was
not due until after the Respondent's pleading was filed
herein. (Doc. 8, pp. 4-5; Doc. 8-8, p. 2). Clearly, Whittle
did not complete the administrative appeal process before
filing his Habeas Petition. His Petition will therefore be
dismissed without prejudice for failure to exhaust his
foregoing reasons, Petitioner Christopher Whittle's
Petition for Writ of Habeas Corpus under 28 U.S.C. §2241
(Doc. 1) is DISMISSED WITHOUT PREJUDICE for
failure to exhaust administrative remedies. The Clerk of
Court is DIRECTED to enter judgment
not necessary for Whittle to obtain a certificate of
appealability from this disposition of his § 2241
petition. Walker v. O'Brien, 216 F.3d 626, 638
(7th Cir. 2000). If Petitioner wishes to appeal the dismissal
of this action, his notice of appeal must be filed with this
Court within 60 days of the entry of judgment. Fed. R. App.
P. 4(a)(1(A). A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 60-day
appeal deadline. Fed. R. App. P. 4(a)(4). A Rule 59(e) motion
must be filed no more than twenty-eight (28) days after the
entry of the judgment, and this 28-day deadline cannot be
extended. Other motions, including a Rule 60 motion for
relief from a final judgment, do not toll the deadline for an
motion for leave to appeal in forma pauperis
(“IFP”) must set forth the issues Petitioner
plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If Petitioner chooses to appeal and is allowed
to proceed IFP, he will be liable for a portion of the
$505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past
six months) irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998).